IV. Venire Facias, and its Service upon the Prisoner. 36. In computing the time of delivering the list to the prisoner, the day of trial and the day of delivery must both be excluded. State v. McLendon, 1 S. 195. 37. Upon a change of venue, after a transmission of the original papers and transcript of orders, &c., to another county, a copy of the venire facias, certified by the clerk of the court which ordered the change, cannot be received as part of the record. State v. Williams, 3 S. 454. 38. But after plea of the general issue, no objection reaching the venire facias can be made, and therefore the want of one is no error. Ibid. 39. Writ of venire facias by which a grand jury is summoned, is not void for the want of seal of office of the clerk who issues it. Maber v. State, 1 P. 265. V. Pleading and Evidence. 40. The permission to withdraw the plea of the general issue to plead in abatement or demur, is discretionary with the court even in criminal cases. State v. Williams 3 S. 454. 41. Under an indictment charging an assault on the 10th, evidence is admissible of assault on the 3d and 4th of same month. Shelton v. State, 1 S. & P. 208. 42. A substantial misnomer, either in the christian or sur-name, is good on plea in abatement. · Lynes v. State, 5 P. 236. 43. A defendant cannot be compelled to select and rely upon one of several pleas submitted by him, for although the statute authorizing the filing of several pleas, does not include criminal cases, yet the right thus to plead exists at common law. Ibid. 44. An admission by the accused is strong evidence of guilt, but it is not conclusive; he may show that it originated in mistake, or explain it away by circumstances—a confession, unless it be an admission by plea, is merely evidence to be determined by a jury. State v. Welch, 7 P. 463. VI. Of Appeals and Points Referred. 45. Not necessary that prisoner should be present at the trial in the supreme court. Phleming v. State, A. R. 42. 46. Appeal will not lie to the supreme court in criminal cases. The statutes of the state have pointed out but one way to bring up such cases; and that is after final judgment in the circuit court, by reference of questions novel and difficult in the law. Humphrey, a slave, v. State, A. R, 64, 37. There must be a final judgment, or supreme court will not entertain jurisdiction of the points referred. State v. Sampson & Rice, A. R. 266, 48. In criminal cases upon points referred to supreme court as novel and difficult, it is not correct practice for defendant to assign error in the record, as the court will confine itself to the points, and will not award a certiorari to bring up other parts of the record. State v Shelton, 3 S. 343. 49. The statute of 1820, providing for the reference of points "novel and difficult," excludes cases of misdemeanors, and would seem to be confined to cases of felony and treason. In all other cases the parties have a right to the writ of error. Callahan v. State, 2 S. & P. 379. 50. No particular mode is required in referring points novel and difficult, provided it appears clearly by the record, that the reference has been made by the court, nor is it necessary that they should be certified under the hand of the judge. Prince v. State 3 S. & P. 253. Nedv. State, 7 P. 137. } 51. The power of referring novel questions of law to the supreme court is discretionary with the court below, and the supreme court in their adjudication, will look alone to the point referred. Holland et al. v. State, 3 P. 292. 52. When at one term a decision of the court is made on demurrer to a plea in abatement against a defendant in a prosecution; a judge at a subsequent term has no authority to review the propriety of that decision, and refer the question as novel and difficult. Lynes v. State, 3 P. 348. 53. That an order of the court below transferring a case to supreme court, sets out that the questions raised are novel and difficult to the counsel, will not authorize this court to refuse jurisdiction. State v. Greenwood, 5 P. 474. 54. The legislature having omitted to prescribe the regulations by which the ordinary constitutional power of the supreme court over subordinate jurisdictions is to be exercised in criminal cases, the court must resort to such writs as are known to the law-such as the writ of error, which is considered at common law, as grantable in all cases ex debito justicia, except in treason and felony. Lynes v. State, 5 P. 236. 55. That an inferior court in referring a question, suspends its judgment beyond forty days directed by statute 1834, is not error, the statute being only directory. Charles a Slave v. State, 3 S. 440. VII. Trial of Slaves. 56. By the statute 1821, the County Court is the proper tribunal for the trial of slaves for capital offences. Humphrey v. State. A. R. 64. 57. Indictment against a slave, charging him with the murder of his master, but not averring that the master was a free person, not within the statute 1814. State v. Moses, A. R. 393. 58. Slave may be punished by whipping and branding for man-slaughter. State v. Peter, 1 S. 58. VIII. Assault and Battery; Assault with Intent to Kill. 59. On an indictment, the defendant may prove the pendency of a civil action for the same assault in mitigation of damages. State v. Aubrey, 1 S. 399. 60. The imprisonment under the statute 1807, for assault with intent to kill, is not to be assessed and determined by a jury, but by the court. Hawkins v. State, 3 S. & P. 63. 61. Under the statute, an indictment for assault with intent to kill, charging the offence as felonious is not bad though the act amount only to a misdemeanor. State v. Stedman, 7 P. 495. 62. Under such an indictment, defendant may be convicted of a simple seoanlt and hattoru, Ibid. IX. Murder and Manslaughter. 63. On a trial for murder, evidence of the good or bad character of the deceased is not admissible, except in cases where the killing is attended by circumstances creating a doubt as to its true character: as, when it appears, that the slayor has been actuated in the commission of the offence by the spirit of self-defence, or by some other fact that would excuse the deed. So the rejection of such evidence is not error, when the record does not show a case to warrant its admission. Queensberry v. State, 3 S. & P. 308. 64. The sixth article of the constitution, in relation to the killing or dismemberment of a slave, was not intended to create a new offence—and, therefore, an indictment charging only in the words of the constitution, "malicious killing of a slave” held not to be sufficient. State v. Coleman, 5 P. 32. 65. One may aid and abet in the commission of manslaughter and be punished accordingly. Ibid. 66. Under an indictment, charging an aiding and abetting of a murder, the prisoner may be convicted of manslaughter. Ibid. 67. If defendant made first assault with a pistol, and the prosecutor retreated and picked up a stone to defend himself, large enough if used to occasion death, and while stooping he was shot by defendant-if death ensues, this is murder. State v. Stedman, 7 P.495. X. Mayhem. 68. When a statute adopts a common law offence, all the common law requirements in defining the offence should be followed in the indictment; but when a statute describes an act as a crime or misdemeanor of a particular grade, the indictment need not state the legal conclusion, that a particular act amounts to such crime, &c. State v. Absence, 4 P. 397. 69. Thus on an indictment for a mayhem, it is not essential to charge the offence as having been committed feloniously. Ibid, 70. One indicted as principal in the second degree, may be guilty of the offence of beating, perpetrated by the principal in the first degree, without being guilty of the mayhem. So the charge of the court, that if a principal in the first degree is guilty of mayhem, and the principal in the second degree has aided and abetted the fight, the latter would also be guilty of mayhem, is too broad. Ibid. XI. Rebellion. 71. Under the Statute 1812-"aiding and assisting a slave" is one offence: "to be in anywise concerned with a slave," is another-and each category is susceptible of a subdivision. To render one guilty of the first-it would be necessary that rebellion or conspiracy should be meditated by a slave, but it is immaterial whether it originates with a free person or slave. State v. McDonald, 4 P. 449. 72. To make a free person guilty of advising, plotting or consulting with a slave for the purpose of encouraging any insurrection or rebellion under that statute, there must be proof of an actual or meditated rebellion by a .slave. Ibid. 73. That advising, plotting or consulting, for the purpose of encouraging, exciting, aiding, or assisting an insurrection or rebellion, constitute treason, in other countries-which offence, is recognized under a peculiar definition, in the constitution of the United States, and of this State does not preclude the Legislature from denouncing these acts as a distinct offence, punishable capitally. Ibid. XII. Arson. 74. When A, being in possession of a house on public land, under a lease from B, who (previously, by a verbal contract, had sold the possessary right in the premises to C, without A's knowledge,) ejected C, who had entered and burnt the house. This was held not to be arson. Sullivan v. State, 5 S. & P. 175. XIII. Negro Stealing. 75. This offence is not embraced in the provisions of the statute 1807, limiting the prosecution of certain offences to one year. Prince v. State, 3 S. & P. 253. 76. Indictments framed under statutes, must conform strictly to the words of the enactment. Thus under the statute for stealing slaves, the omission of an allegation, that they were stolen out of and from the possession of the master or overseer-held bad. State v. Brown, 4 P. 410. XIV. Larceny. Such a 77. A person who steals property in another State and brings it into this, is liable to be indicted under the statute, providing for such an act. statute is constitutional. State v. Sears, 3 S. 123. 78. At common law-a chose in action is not the subject of a larcenyand under the statute making "promissory notes" the subject oflarceny, an indictment for larceny of "bank notes," is not sustainable. Culp v. State, 1 P. 33. 79. An indictment for larceny of "bills of credit," on the United States bank cannot be sustained, where the amounts of the bills were less than is warranted by their charter. Ibid. 80. A count charging generally the larceny of "bills of credit" is bad; the state having no authority to issue such choses of action. 1bid. 81. Indictment charging the larceny of promissory notes, omission to charge the value of the notes, is a material defect. Wilson v. State, 1P. 118. 82. An indictment for larceny will not lie, if it appear that the articles alledged to have been stolen, have been transferred so as to create any trust, right or property; and this is a question to be tried by the jury. Ibid. 83. The description of the amount of notes, is not tantamount to an averment of their value, nor a compliance with the rule, "that indictments for larceny must state the value of the articles." Ibid. 24 Bonds, notes, &c. to be the subject of larceny, must be at the time of taking, legally valid and subsisting securities for the payment of money or some specific article of value. I bid. 85. False pretences or artifices to obtain another's property, with a felonious intent, will constitute larceny, provided it does not appear that a temporary transfer of possession was extended to the party. Ibid. XV. Marking Hogs. 86. It is not an indictable offence to mark hogs without the owners consent, as the statute 1811, has given a remedy by debt, for penalty. Reagh v. Spann, 3 S. 100. XVI. Conspiracy. 87. A confederacy to do an unlawful act, to the injury of another, is sufficient to sustain an indictment for a conspiracy: it is not necessary that the act be put into execution. State v. Cawood, 2 S. 360. 88. And such offence is punishable by fine and imprisonment, as a misdemeanor. Ibid. XVII. Retailing without License. 89. On an indictment, a permission of a city corporation will not protect defendant. Davis v. State, 4 S. & P 83, 90. An indictment using the general words of the statute, charging the retailing of "spiritous liquors," held deficient as the statute had used particular terms. State v. Raiford, 7 P. 10. XVIII. Gaming. 91. An indictment under the statute 1828, for playing at cards is sufficient without setting out that it was a game at cards. Holland v. State, 3 P. 292. 92. An indictment may be sustained under the statute 1826, prohibiting gaming on "one's premises," charging a person with permitting gaming to be exhibited in his house. And when it is alledged to have been exhibited in a certain county, the place is sufficiently described. at Cary v. State, 4 P. 186. 93. Two or more persons may be indicted jointly for keeping a gaming house; and, under such an indictment, one may be convicted and the other acquitted. Ibid. 94. Nor is it available in error, that the jury assessed a less fine than is prescribed by the statute. Ibid. |